Whitman v. City of Burton

Decision Date01 May 2013
Docket NumberDocket No. 143475.
Citation831 N.W.2d 223,493 Mich. 303
PartiesWHITMAN v. CITY OF BURTON.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Tom R. Pabst, Michael A. Kowalko, and Jarrett M. Pabst, Flint, for plaintiff.

Plunkett Cooney, Detroit, (by Ernest R. Bazzana), for defendants.

Peter M. Bade, Corporation Counsel, and John Postulka, Assistant Corporation Counsel, for the City of Flint.

Garan Lucow Miller, P.C. (by Rosalind Rochkind), for the Michigan Municipal League, the Michigan Townships Association, and the Public Corporation Law Section of the State Bar of Michigan.

Bogas, Koncius & Croson, PC (by Charlotte Croson, Bingham Farms), for the Michigan Association for Justice.

MARY BETH KELLY, J.

This case involves the proper interpretation of the Whistleblowers' Protection Act (WPA),1 which protects an employee against an employer's retaliatory employment actions, including discharge, when the employee is engaged in protected activity. Specifically, we address whether this Court's decision in Shallal v. Catholic Social Services of Wayne County2 requires an employee engaging in protected conductto have, as his or her primary motivation for engaging in that conduct, a desire to inform the public on matters of public concern, rather than personal vindictiveness.

Nothing in the statutory language of the WPA addresses the employee's motivation for engaging in protected conduct, nor does any language in the act mandate that the employee's primary motivation be a desire to inform the public of matters of public concern. Rather, the plain language of MCL 15.362 controls, and we clarify that a plaintiff's motivation is not relevant to the issue whether a plaintiff has engaged in protected activity and that proof of primary motivation is not a prerequisite to bringing a claim. To the extent that Shallal has been interpreted to mandate those requirements, it is disavowed. Accordingly, we reverse the judgment of the Court of Appeals and remand this matter to that Court for consideration of all remaining issues, including whether the causation element of MCL 15.362 has been met.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff, Bruce Whitman, was employed by defendant city of Burton as the chief of police from the time of his appointment in March 2002 until November 2007 when codefendant Charles Smiley, the mayor of Burton (the Mayor), declined to reappoint him. Whitman thereafter brought this action under the WPA, claiming that the Mayor's decision not to reappoint him was prompted by Whitman's repeated complaints to the Mayor and the city attorney that the refusal to pay Whitman's previously accumulated unused sick and personal leave time would violate a Burton ordinance.

Burton Ordinances 68–25C, § 8(I) (Ordinance 68C) 3 allows for unelected administrative officers, including Whitman, to be compensated for unused sick, personal, and vacation time on an annual basis.4 Because of significant budgetary problems in March 2003, the Mayor and the city department heads made a “gentleman's agreement” to forgo payments of unused sick, personal, and vacation time as a budget-cutting measure, which was acknowledged in a memorandum dated March 18, 2003. Although the agreement was memorialized, the city officials did not amend or rescind the ordinance allowing compensation for the unused days. On March 20, 2003, Whitman sent a letter to the Mayor objecting to the austerity measures outlined in the March 18th memorandum.

Despite receiving notice that he would not receive compensation for the unused leave time, Whitman continued to accumulate unused vacation, personal, and sick days throughout 2003. In January 2004, Whitman undertook a series of actions to secure payment for his 2003 unused days, repeatedly asserting that the city was acting in violation of Ordinance 68C. Specifically, on January 9, 2004, Whitman sent a letter to the Mayor requesting payout for his 2003 unused days. In pertinent part, Whitman's letter stated, “To ignore issues specified in that ordinance would be a direct overt violation of that ordinance and I fully intend to address the violation should it occur.”

On January 12, 2004, Whitman attended a staff meeting and advised that he had spoken to the city attorney about the issue, and that refusing to pay employees for unused days was an ordinance violation that needed to be addressed. On January 15, 2004, Whitman wrote a letter to Dennis Lowthian, an administrative officer for the city who had been acting as a spokesperson for all of the administrators. In this letter, Whitman reiterated his concerns, stating, “I cannot allow them to violate the ordinance by ‘forcing waivers' of ordinance given rights. I believe it is my job as a police officer to point the violation out and I will pursue it as far as it needs to go.”

On January 23, 2004, Whitman once again wrote the city attorney, reasserting that the failure of the city to pay him for unused days was a violation of the ordinance. Whitman stated, [T]his is a violation of the ordinance.... If I need to re address [sic] through the council I will, if you have any input on resolving this I would appreciate it or I will be forced to pursue this as a violation of the law and will address it as such.” On January 29, 2004, the city relented and, on the advice of the city attorney that failure to pay Whitman would be in violation of Ordinance 68C, authorized payments for all unused days to Whitman and all other officers who had requested it.

It was this series of actions that Whitman claims served as the catalyst for the Mayor's decision not to reappoint him in 2007. According to Whitman, the Mayor's conduct after the city's authorization of payment for his unused vacation and sick days further substantiates the validity of his WPA claim. Whitman alleges that in a letter dated June 7, 2004, the Mayor stated that he was considering removing Whitman as police chief, specifically citing Whitman's actions in pursuing compensation for his unused vacation and sick days as a basis for the Mayor's claim that he could not trust Whitman. During a meeting that took place later that same day, Whitman claims that the Mayor was very angry at him and yelled, [Y]ou tried to put me in jail” over the Ordinance 68C issue. Whitman also claims that the Mayor angrily pointed his finger at him, stating, “I demand total allegiance to me from my administrators [.] A coworker who was present during that meeting took handwritten notes that stated, Mayor = No Trust—68–C (vacation)—lack of communication[.]

Following his reelection in 2007, the Mayor declined to reappoint Whitman. Shortly thereafter, the Mayor attended a meeting with members of the police department. Several officers in attendance at this meeting reported that the Mayor stated that he and Whitman “got off on the wrong foot” because of the Ordinance 68C issue and that Whitman's conduct relating to the ordinance got them off to a “bad start.” There were also allegations by officers who stated that after the meeting, the Mayor had indicated that “it all goes back to” the Ordinance 68C issue, and that the Mayor had not been happy with Whitman since shortly after his appointment because of the Ordinance 68C issue.

Defendants deny that the Mayor's decision to appoint another police chief in 2007 was in any way related to Whitman's complaints about the Ordinance 68C violation, asserting that the decision was the result of the Mayor's dissatisfaction with Whitman's performance. Specifically, defendants claim there were numerous reasons for Smiley's decision not to reappoint Whitman, including Whitman's alleged inadequatediscipline of officers who inappropriately stopped the Mayor after the Mayor visited a local bar, Whitman's alleged e-mailing of inappropriate messages using the city's computer, Whitman's alleged discrimination against a female officer, and Whitman's alleged forgery of a signature on a budget memo. Whitman, however, asserts that his personnel file demonstratesthat his performance as a police chief was good, that he had received numerous awards, and that there were never any disciplinary actions against him. Whitman further alleges that any performance issues cited by the Mayor were merely a pretext.5

Whitman thereafter brought this WPA action against both the city of Burton and the Mayor in his individual capacity. At trial, the jury found that Whitman had engaged in protected conduct and that his protected conduct made a difference in the Mayor's decision not to reappoint him as police chief. The jury awarded Whitman total damages in the amount of $232,500.00, and the circuit court subsequently entered a judgment in that amount. Defendants then moved for judgment notwithstanding the verdict (JNOV) or for a new trial, which the circuit court denied.

The Court of Appeals reversed in a split published opinion,6 with the majority holding, as a matter of law, that Whitman's claim was not actionable under the WPA because, “in threatening to inform the city council or prosecute the mayor for a violation of Ordinance 68–C, plaintiff clearly intended to advance his own financial interests. He did not pursue the matter to inform the public on a matter of public concern.” 7 On the basis of its belief that a “ critical inquiry ” in determining the validity of a claim under the WPA “is whether the employee acted in good faith and with ‘a desire to inform the public on matters of public concern ...,’ 8 the Court of Appeals concluded that Whitmanhad “acted entirely on his own behalf” such that [u]nder these facts, no reasonable juror could conclude that plaintiff threatened to prosecute defendants ‘out of an altruistic motive of protecting the public.’ 9

Accordingly, the Court of Appeals reversed the circuit court's denial of defendants' motion for JNOV and remanded the case for further proceedings. The majority did not decide any of the remaining issues, including causation. This Court granted leave to...

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